CNN BREAKING NEWS

Interview of Marvin Kornberg, Justin Volpe's Attorney

Aired February 28, 2002 - 11:10 ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. LEON HARRIS, CNN ANCHOR: Some more reaction now, Daryn, to this breaking story that we have this morning about the overturning of the convictions of three officers involved in the Abner Louima case, the case of the Haitian immigrant who was sodomized with a broken broomstick at the 70th precinct in New York.

We have talked to at least one other lawyer in this case, Abner Louima's lawyer, and now we want to talk with the lawyer of the one officer in the entire case who pled guilty. That officer being Justin Volpe. He was convicted after pleading guilty of being the one who sodomized the Haitian immigrant. Marvin Kornberg is the attorney for Justin Volpe, and he joins us now on the telephone.

Mr. Kornberg, can you give your reaction to this news this morning?

MARVIN KORNBERG: Well, it is good news as far as Justin is concerned, because it now means that he will, in a second trial against Schwarz, be able to take the stand and will most probably be called to the stand, and tell the story as to who was in the bathroom with him.

HARRIS: But if he tells that story, again, that's not going to affect what happens with him, correct? He will stay in jail.

KORNBERG: That's not necessarily so. Yes, he will stay in jail. But you have to remember, he has always taken the position and always told the court, and always told the United States attorney's office, that it was not Schwarz who was in the bathroom with him. And now, if he testifies and a jury believes him, he would be entitled to ask the judge who is presiding over the case for a downward departure (ph) with the respect to the amount of time he has to do in jail. You have to remember, everybody laughed at him when he said it was not Schwarz.

HARRIS: All right, back up for just a second. How -- explain to those who are lay people what exactly that means, how is it that this other change with three others who did not plead guilty could actually lead to the one who did plead guilty getting out?

KORNBERG: You have a sentencing procedure in the federal court under the federal guidelines, and under the federal guidelines, you are allowed certain downward departures (ph) or certain reductions in your sentence. He had sought the reductions in his sentence at the time, saying that he is coming forth, he is telling the truth. It was he who was in the bathroom and not Schwarz who was in the bathroom with him.

The U.S. attorney did not want to listen to him, the judge did not want to listen to him. The defense lawyer at that time for Mr. Schwarz didn't want to call him. Now it turns out that there's going to be a new trial, and he could take the stand, be subject to cross- examination, and if he is believed by the jury, he could then ask the judge and say, basically, see, I told you so. I was right before.

HARRIS: But let me ask you this, because as I read it, the appeals court didn't say necessarily that these convictions should be overturned because of the evidence, because they thought something wrong with actual information presented. It was just -- as a matter of fact, something of a technicality here.

KORNBERG: No, I think one of the reasons why the appeals court set the Schwarz decision aside was what we call "ineffective assistance of counsel," and not getting all of the information before the jury, and some of the information that should have been called to the jury's attention at that time was the fact that Volpe, who took the plea, took the plea and told the U.S. attorney at that time that it was not Schwarz who was in the bathroom with him. The failure to bring that forth to the jury at that time may have been the cause for the jury finding Schwarz guilty, and that's what the circuit, I think, determined when they said that there was -- he didn't get effective representation.

HARRIS: Well, how soon do you think is all going to come back to court?

KORNBERG: As quickly as possible, if I know the U.S. attorney's office. There will be certain time parameters, and you are going to get a new trial within -- I would say, within six months.

HARRIS: Well, you know, we will be watching to see what happens...

(CROSSTALK)

KORNBERG: I'm sure you guys will.

HARRIS: Marvin Kornberg, thank you very much. We sure do appreciate your time.

KORNBERG: You're welcome, bye-bye.

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